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Entries in EEOC
(49)

In this Verrill Voices podcast, labor and employment attorneys Tawny Alvarez and Richard Moon discuss recent administrative and legislative developments, how they affect employers generally. More specifically, they discuss the current position in which the Department of Justice and the EEOC are taking separate and distinct positions on the issue of whether Title VII covers sexual orientation discrimination, highlighting a Second Circuit case that has brought the issue to the forefront. In addition to sexual orientation and gender discrimination policies, the stalled increase in the overtime exemption wage and President Trump's recent direction on affirmative action policies are also discussed.

On Thursday, January 19, 2017, the Eighth Circuit issued an opinion in Guenther v. Griffin Constr. Co., 16-1760 (8th Cir. Jan. 19, 2017), and held that a claim for compensatory damages brought under the Americans with Disabilities Act (ADA) survives the death of the aggrieved party. The case involved an employee who was terminated from Griffin Construction in 2008 after overseeing construction projects for four (4) years. He claimed that he was terminated as a result of his diagnosis with cancer.

The former employee filed a charge of discrimination with the EEOC, but died before the administrative process was complete. The EEOC issued a right-to-sue letter, having found reasonable cause, and the administrator of the estate filed suit under the Arkansas Civil Rights Act as well as Title I of the ADA. Griffin Construction moved to dismiss (arguing the claims did not survive death) and the district court agreed, finding the ADA claim abated at death and entered judgment on the pleadings for Griffin Construction.

Last week the EEOC released proposed Enforcement Guidance on Unlawful Harassment with a Press Release noting that the proposed Guidance is available for input until February 9, 2017. Information on how to provide feedback on the Guidance is available here. Whether one chooses to provide feedback or not, however, the proposed Guidance and related documents are filled with helpful information.

The Press Release notes that between fiscal years 2012 and 2015, the “percentage of private sector charges that included allegations of harassment increased” annually to over 30% of all charges filled with the EEOC. In fiscal year 2015 alone, the EEOC received 27,893 private sector charges that included allegations of harassment while federal employees filed 6,741 complaints.

On Friday, November 4, 2016, the Western District of Pennsylvania issued an order denying Defendant’s Motion to Dismiss in EEOC v. Scott Medical Health Center (No. 2:16-cv-00225) finding that a claim of sexual orientation discrimination is a form of sex discrimination prohibited by Title VII of the Civil Rights Act. The order, penned by U.S. District Judge Cathy Bisson, refuses to adopt the Third Circuit’s prior rulings that sexual orientation is not a protected class under Title VII, noting that there have been “significant intervening legal developments that call into question how the [Third Circuit] evaluated Title VII in Bibby” and also noted that in Bibby, the Court was not faced with the same arguments that the EEOC had presented in the current matter.

Specifically, the Western District held: “Title VII’s ‘because of sex’ provision prohibits discrimination on the basis of sexual orientation,” and the court saw “no meaningful difference between sexual orientation discrimination and discrimination ‘because of sex.’”

More on all six of these initiatives can be found here. Within the “Preserving Access to the Legal System,” initiative, the EEOC notes it will focus on: “1) overly broad waivers, releases, and mandatory arbitration provisions (e.g., waivers or releases that limit substantive rights, deter or prohibit filing charges with EEOC, or deter or prohibit providing information to assist in the investigation or prosecution of discrimination claims);

Late last week, the Seventh Circuit issued an opinion in Hively v. Ivy Tech Community College, in which it held that Title VII provides no redress for discrimination of the basis of sexual orientation. The Seventh Circuit is the first federal court of appeals court to rule on the issue since the EEOC’s administrative ruling in July 2015 that bias based on sexual orientation is discrimination in violation of Title VII.

While the court relied on previous holding of the circuit that sexual orientation was not a protected case, the court provided an extended analysis of the EEOC’s 2015 decision in Baldwin v. Foxx, EEOC Appeal No. 0120133080, 2015 WL 4397641, at *5, *10 (July 16, 2015), where the EEOC concluded that: “sexual orientation is inherently a ‘sex-based consideration,’ and an allegation of discrimination based on sexual orientation is necessarily an allegation of sex discrimination under Title VII.” In support of this position, the EEOC has been relying in large part on the United States Supreme Court’s decision in Price Waterhouse where the Court held that gender stereotyping constituted discrimination on the basis of sex in violation of Title VII.